negligence claim v Amazon survives when 230 bars false advertising claim

Brodie v. Green Spot Foods, LLC, 2020 WL 7027594, No. 20
Civ. 1178 (ER) (S.D.N.Y. Nov. 30, 2020)

Brodie sued Green Spot and Amazon for “injuries she
sustained after consuming a product known as Better than Pasta, which she
purchased on Amazon’s website.” Better than Pasta products are pasta
substitutes whose primary ingredient is a root plant called konjac. “When
consumed, konjac swells from its original size in the human digestive tract and
may become indigestible. It may also cause choking and stomach or intestinal
blockage.” Brodie pled that these dangers are “generally well-known” and have
led the FDA and similar regulatory bodies to ban certain foods containing
konjac or issue warnings about its risks. The packaging states that the food is
“made from organic Konnyaku flour, from the root of an ancient Japanese organic
plant called Konjac,” but doesn’t provide warnings about konjac’s alleged

Green Spot allegedly initially created all advertising for the
product, but Amazon also marketed and advertised the product on Green
Spot participates in Fulfillment by Amazon, meaning that Amazon ships the
product to customers directly from its warehouses. Amazon designated Better
than Pasta as an “Amazon’s Choice” product on the website.

Green Spot and Amazon were allegedly made aware of the
dangers of Better than Pasta because they received numerous customer complaints
about the health issues caused by consuming the product. E.g., “I tried this
pasta for the first time last night, and today I’m having SEVERE intestinal
cramps. Buyer beware! I did a web search and discovered some Konjac root
products have been banned because they can actually cause an intestinal
blockage.” Brodie alleged that Green Spot “may have directed Amazon to remove
other negative complaints about the product,” and that it pays or incentivizes
individuals to leave “false positive reviews” with Amazon’s knowledge, which
Amazon allowed.

Negligence/breach of implied warranty by Amazon was
sufficiently alleged because the ingredient was listed and Brodie sufficiently alleged
that the ingredient’s dangers were generally known, and that the negative
reviews posted on the website made Amazon aware of konjac’s potential to cause
digestion issues and other injuries, and retailers have a duty to know that which
can be known by ordinary inspection.

“Amazon’s Choice,” however, wasn’t an express warranty because
it didn’t make a specific factual representation.

NY GBL §§349 & 350: The CDA protected Amazon from
liability for republishing content created by Green Spot. “There is
insufficient factual pleading supporting the plausible inference that Amazon
itself created or edited any of the Better than Pasta advertising content.” As
for the consumer review-based allegations, they were insufficient. “Although
Brodie alleges that it is common for third-party sellers to pay for false
positive reviews, this fact does not lead to a plausible inference that Amazon
itself knows about this practice or permits false reviews to be posted.”


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